HONORABLE JACK SANDSTROM, AS DIRECTOR OF THE DADE COUNTY JAIL, AND E. WILSON PURDY, AS SHERIFF OF DADE COUNTY, FLORIDA, APPELLANTS,
v.
ALEXANDER S. KOLSKI, APPELLEE
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The Florida District Court of Appeal reversed a trial court's order granting a writ of habeas corpus to Alexander Kolski, finding that the trial court lacked jurisdiction because Kolski was not in custody at the time the habeas petition was filed—he had merely been issued a complaint and promised to appear in court.
The court held that Kolski was not in the custody of the respondents and therefore the trial court lacked jurisdiction to entertain the habeas corpus petition. Accordingly, the order sustaining the writ of habeas corpus was quashed.
[1] A writ of habeas corpus is unavailable when the petitioner is not in the custody of the respondent.
[2] A complaint promising future appearance in court does not constitute custody for purposes of a habeas corpus petition.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“petitioner was not in the custody of respondent-appellants and, therefore, the trial court lacked jurisdiction to entertain the subject petition for writ of habeas corpus”
Establishes the core holding that absence of custody defeats jurisdiction for habeas corpus relief
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Join FLexlaw to unlock all legal intelligenceKolski was charged with disorderly conduct on December 24, 1973, based on a complaint. He was not arrested or held in custody but was instead released…
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PER CURIAM.
Respondent-appellants appeal an order sustaining writ of habeas corpus.
By complaint issued on December 24, 1973, petitioner-appellee Alexander Kolski was charged with disorderly conduct in violation of the City of Miami Code 38-10(a). Thereafter, on January 29, 1974 appellee filed a petition for writ of habeas corpus which was issued to Bernard Gar-mire, Chief of Police of the City of Miami. Respondent Garmire filed a motion to quash or dismiss and as grounds therefor alleged that petitioner was not being held in his custody. Thereupon, petitioner-ap-pellee filed an amended petition for writ of habeas corpus and named as respondents Bernard Garmire, Jack Sandstrom, Director of. the Dade County Jail, and E. Wilson Purdy, Sheriff of Dade County. On February 19, 1974 a writ of habeas corpus was issued and on February 25, 1974 respondents filed their return to the writ. A hearing was held thereon at the conclusion of which the circuit court judge entered an order sustaining writ of habeas corpus based upon the finding that the petitioner-appellee was in custody pursuant to an arrest for violating Section 38-10 (a) of the Miami Municipal Code and that the ordinance was unconstitutional for its vagueness. The judge also entered an order dismissing the petition and amended petition for writ of habeas corpus as to respondent Bernard Garmire. Respondents Sandstrom and Purdy appeal the order sustaining writ of habeas corpus.
Respondent-appellants first contend that the trial court erred in considering a petition for writ of habeas corpus, issuing a writ thereon and granting a writ of habeas corpus when the petitioner was not, in fact, in the custody of respondents. We find this point has merit.
The record in the case sub judice reflects that a complaint was issued to the petitioner-appellee who promised to appear in court at a time and place to be designated at some future date. Thus, we conclude that the petitioner was not in the custody of respondent-appellants and, therefore, the trial court lacked jurisdiction to entertain the subject petition for writ of habeas corpus. See Starr v. Smith, Fla.1955, 77 So. 2d 834.
Accordingly, the order sustaining the petition for writ of habeas corpus hereby is quashed.
It is so ordered.
NATHAN, Judge
(specially concurring).
I agree with the majority in the outcome of this case. However, I respectfully disagree with the determination that the petitioner is not in custody. The definition of custody is not restricted to actual physical custody or imprisonment. See Hensley v. Municipal Court, San Jose-Milpitas Judicial District, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294.
It is my opinion that the petitioner is in custody, but the restraints on his liberty are not so severe as to justify a writ of habeas corpus which is an extraordinary remedy the use of which is limited to cases of special urgency. Petitioner in this case is seeking by habeas corpus to test the constitutionality of a statute prior to any physical detention and prior to trial when the restraints on his liberty are neither severe nor immediate.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lambertson v. State, 479 So. 2d 773 (Fla. 5th DCA 1985)…as corpus purposes. In Bosso, the same principle was applied to a petitioner who was on probation. But neither of those facts is present here. Petitioner is not yet under any restraint as she has not been taken into custody. Cf. Sandstrom v. Kolski, 305 So. 2d 75 (Fla. 3d DCA 1974) (petitioner who promised to appear at a future date was not in custody for the purposes of habeas corpus). As stated in Carfas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), to meet the requirement of custody, th…
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Schmunk v. State of Fla. ex rel. Ray Sandstrom, 353 So. 2d 907 (Fla. 4th DCA 1977)…ourt of the Eleventh Judicial Circuit In and For Dade County, 155 Fla. 589, 21 So. 2d 41 (1945). Moreover, where a person is not in custody, the court does not have jurisdiction to entertain a petition for writ of habeas corpus. Sandstrom v. Kolski, 305 So. 2d 75 (Fla. 3 DCA 1974). Accordingly, the final order and judgment in habeas corpus is reversed and this cause remanded to the trial court for proper proceeding. REVERSED AND REMANDED. ANSTEAD and LETTS, JJ., and STEPHEN LEE DAKAN, Associate Judge, conc…
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Key v. State (Fla. 6th DCA 2026)
Authorities Cited
- Hensley v. Mun. Court, 411 U.S. 345 (U.S. 1973)
- Hernandez v. State (Fla. 3d DCA 2024)
- Starr v. Smith, 77 So. 2d 834 (Fla. 1955)